What is the Eviction of a Rented Property Due to Need (Necessity)?
Eviction of a rented property due to need (necessity) covers the situation where the landlord or the landlord’s relatives require the rented property, and it is regulated in two ways under the Turkish Code of Obligations:
1.Need, Reconstruction, and Urban Development
‘’Article 350 – The lessor may terminate the lease agreement;
- If the lessor needs to use the rented property for themselves, their spouse, their descendants, their ascendants, or other persons they are legally obliged to support, due to the need for a residence or workplace,
- and if substantial repair, expansion, or modification of the rented property is necessary for reconstruction or urban development, and the use of the property is impossible during these works, the lessor may terminate the lease by filing a lawsuit within one month: at the end of the term for fixed-term leases, or for indefinite-term leases, starting from the date determined in accordance with the general provisions regarding termination periods and notice requirements.
2.Need of the New Owner
Article 351 – If a person who subsequently acquires the rented property needs to use it for themselves, their spouse, their descendants, their ascendants, or other persons they are legally obliged to support, due to the need for a residence or workplace, they may terminate the lease by notifying the tenant in writing within one month from the date of acquisition and filing a lawsuit six months after the acquisition.
The person who subsequently acquires the rented property may also exercise the right to terminate the lease due to need by filing a lawsuit within one month starting from the end of the lease term.
Eviction Lawsuit Due to Need
In eviction lawsuits based on a claim of need, the judge’s ability to order eviction depends on the need being genuine, real, and necessary. Therefore, eviction requests that do not meet these conditions are not accepted. Additionally, temporary needs or needs that have not yet arisen or whose occurrence depends on a long period of time are not considered valid grounds for eviction.
Time Limit for Filing an Eviction Lawsuit Due to Need
According to the decision of the Turkish Court of Cassation, 3rd Civil Chamber, dated 22.02.2017, case no. 2017/1367, decision no. 2017/1784:
“Pursuant to Article 350/1 of the Turkish Code of Obligations No. 6098, eviction lawsuits filed based on a claim of need must be filed within one month: at the end of the term for fixed-term lease agreements, or for indefinite-term lease agreements, starting from the date determined in accordance with the notice periods for termination provided in Article 328 of this law. According to Article 353 of the Turkish Code of Obligations, if the lessor has notified the tenant in writing that they will file a lawsuit, either previously or at the latest within the period allowed for filing the lawsuit, the lawsuit can be filed until the end of the following extended rental year. The time limit for filing the lawsuit is a matter of public order and must be taken into account by the court ex officio, even if the defendant does not raise it.”
Accordingly, in the above-mentioned decision of the 3rd Civil Chamber of the Court of Cassation, Article 328 of the Turkish Code of Obligations, which applies to indefinite-term lease agreements, provides as follows:
“In indefinite-term lease agreements, either party may terminate the contract in accordance with the legal termination periods and notice periods, unless a longer notice period or a different termination period has been agreed upon. In calculating termination periods, the start date of the lease agreement is taken as the basis. If the termination period or notice period specified in the contract or by law is not observed, the notice becomes valid for the next termination period.”
Competent and Jurisdictional Court in Eviction Lawsuits Due to Need
In an eviction lawsuit due to need, the competent court is the Civil Peace Court (Article 4 of the Code of Civil Procedure), while the court with jurisdiction is the court located in the place where the rented property is situated. In this regard, the parties may require a lawyer, such as a rental lawyer in Antalya, to file and follow up on the relevant lawsuit.
Frequently Asked Questions
1. Who Can File an Eviction Lawsuit Due to Need?
According to the relevant provision of the Turkish Code of Obligations (TCO), an eviction lawsuit due to need can be filed by the lessor themselves, the owner or usufructuary who is not a party to the lease agreement, or the new owner.
2.Is a Notice Required for Eviction Due to Need?
Eviction due to need should be examined in three ways under the requirement of a notice (warning). Accordingly, for fixed-term lease agreements, the notice requirement is not necessary; however, the lawsuit must be filed within one month after the end of the contract.
For indefinite-term lease agreements, the notice requirement applies, and the relevant provisions are regulated under Articles 328 and 329 of the Turkish Code of Obligations (TCO) as follows:
Article 328 – In indefinite-term lease agreements, each party may terminate the contract in accordance with the legal termination periods and notice periods, unless a longer notice period or a different termination period has been agreed upon. In calculating the termination periods, the start date of the lease agreement is taken as the basis. If the termination period or notice period specified in the contract or by law is not observed, the notice becomes valid for the next termination period.
Article 329 – Each party may terminate a lease agreement for an immovable or movable property at the end of the rental period determined by local custom, or, if no such custom exists, at the end of a six-month rental period, by complying with a three-month notice period.
Additionally, the new owner may also file an eviction lawsuit due to need by sending a written notice to the tenant within one month from the date of acquisition. Therefore, for the new owner to be able to file an eviction lawsuit due to need six months later, it is mandatory to issue the notice within one month.
3. Can the Landlord Evict the Tenant by Saying “I Will Live There Myself”?
The lessor, that is, the landlord, has the right to evict the tenant due to their own need for the residence. However, in this case, the landlord bears the burden of proof regarding their need for the property in order for the court to grant the eviction.
4. Can the Landlord Evict the Tenant and Rent the Property to a New Tenant?
If the landlord has evicted the tenant as a result of an eviction lawsuit due to need, a “Prohibition on Re-Renting” applies. Accordingly, the landlord cannot rent the property to anyone other than the evicted tenant within three years, unless there is a justified reason. If this rule is violated, the tenant who was evicted through compulsory enforcement has the right to file a compensation lawsuit, and the compensation amount cannot be less than the last one year’s rent.
5.Can a Landlord Living Abroad Evict Due to Need?
For a landlord living abroad to evict a tenant due to need, it is required not only that the landlord has a genuine, sincere, and necessary need, but also that they make a permanent return from abroad. In this regard, the Antalya Regional Court of Justice, 6th Civil Chamber, in its decision dated 02.05.2017, case no. 2017/267, decision no. 2017/281, explained as follows:
“In lawsuits based on a claim of need, in order to grant eviction, it must be proven that the need is genuine, sincere, and necessary. A temporary need that does not have continuity cannot serve as a reason for eviction, and needs that have not yet arisen or whose realization depends on a long period of time cannot be accepted as grounds for eviction. The mere existence of the need at the time the lawsuit is filed is not sufficient; this need must continue throughout the judicial process.
For a person residing abroad to be recognized as having permanently returned to Turkey, a note stating ‘has made a permanent return’ must be recorded in their passport by the Turkish Consulate at their place of residence, the Ministry of Finance, or the Customs Directorate. If a person living abroad has not permanently returned, an eviction decision cannot be issued in a lawsuit filed for a need that has not yet arisen in the future.”
6. How Long Does an Eviction Lawsuit Due to Need Take?
The duration of an eviction lawsuit due to need may vary depending on factors such as the court’s workload, the number of plaintiffs, and compliance with procedural requirements. Generally, it takes between six months and one and a half years.
Some Supreme Court Decisions Regarding Eviction of Rented Property Due to Need (Necessity)
- “The defendant’s attorney argued that the lawsuit was not filed within the prescribed period and that there was no genuine claim of need, requesting the dismissal of the case. The court ruled for the dismissal of the lawsuit. A person who acquires a property, whether a residence or a building with a roofed workplace, may, if they wish, file an eviction lawsuit based on need within one month after the end of the lease, relying on the contract previously made between the former owner and the tenant, or, pursuant to the relevant article of the Turkish Code of Obligations (TCO), may notify the tenant in writing within one month from the acquisition date (including the acquisition day) and file a lawsuit six months after the acquisition date. It is not mandatory to file the lawsuit immediately after six months; it can be filed until the end of the lease term. However, notification within one month following the acquisition is obligatory and cannot be remedied later. To obtain an eviction in the filed lawsuit, the existence of a genuine need must be proven.” (Supreme Court, 6th Civil Chamber, Decision dated 02.04.2013, Case No. 2013/3949, Decision No. 2013/5930)
- “The judgment was served to the appellant on 12/05/2015, and the appeal petition was submitted on 21/05/2015, after the eight-day legal period had expired. The local court, taking into account the temporary Article 3 added to the Code of Civil Procedure No. 6100 by Law No. 6217, ruled for the rejection of the untimely appeal pursuant to Article 432/4 of the Former Code of Civil Procedure (H.U.M.K.). There was no error in this decision. Therefore, the appeals against the decision were rejected, the decision was upheld, and the appellate costs listed below were to be collected from the appellant. The decision was made unanimously on 14.03.2016.” (Supreme Court, Civil Chamber, Decision dated 14.03.2016, Case No. 2015/9951, Decision No. 2016/1963)
- “Regarding our case: The plaintiff acquired the property subject to the lawsuit on 12.02.2015 and, on 17.02.2015, issued a notice on behalf of the defendant informing that they had purchased the property for their own need and requesting the tenant to vacate within 15 days from the notification. The notice was served to the defendant on 06.03.2015. Pursuant to Article 351 of the Turkish Code of Obligations (TCO), an eviction lawsuit due to need can be filed six months after the acquisition date, provided that the tenant is notified in writing within one month from the acquisition date, including the day of acquisition. Although the plaintiff’s attorney notified the defendant within one month of the acquisition, the lawsuit was filed on 30.04.2015, without waiting for the statutory six-month period. Since the lawsuit was filed outside the legal timeframe, the court should have dismissed the case. Therefore, the written decision was incorrect, and the judgment had to be overturned.” (Supreme Court, 6th Civil Chamber, Decision dated 14.03.2016, Case No. 2016/2761, Decision No. 2016/1953)
- “It is not disputed that the ownership of the property in question belongs to the plaintiffs …, that … and … hold usufruct rights on a half-share each, and that the lease agreement dated 01/06/2013, which forms the basis of the lawsuit, was signed between the usufruct right holders … and … as lessors and the defendants as tenants. Due to the death of the usufruct right holder … on 22/08/2017, the usufruct right and the corresponding lessor status ceased, and the owner became a party to the lease agreement. In other words, the heirs of … do not hold the status of lessor. In this case, it is understood that the usufruct right holder and lessor … can file an eviction lawsuit for their half-share, and the owner … can file for the other share due to the termination of the usufruct right, whereas the other plaintiff … does not have active legal standing. Therefore, the regional court should have ruled to dismiss the case for plaintiff … due to lack of active legal standing, and to dismiss the case for the other plaintiffs due to being filed outside the legal timeframe. The written decision was incorrect and requires annulment.” (Supreme Court, 3rd Civil Chamber, Decision dated 28.06.2022, Case No. 2022/2469, Decision No. 2022/6233)
- “In the present case, the lease agreement signed between the former owner and the defendant, which is not disputed between the parties, commenced on 01.09.2014 and had a duration of one year. The plaintiff requested eviction due to need in the lawsuit petition and, on 24.07.2015, served a notice informing the defendant of the need claim and the eviction request. Accordingly, with the notice regarding the request for eviction due to housing need served to the defendant on 12.08.2015, the period for filing an eviction lawsuit for housing need between 01/09/2015 and 01/09/2016 was preserved. Since the lawsuit was filed by the plaintiff on 09.12.2015, within the allowed period, the court should have examined the merits of the case. Therefore, the dismissal of the case with the written reasoning was incorrect.” (Supreme Court, 3rd Civil Chamber, Decision dated 19.02.2018, Case No. 2017/8814, Decision No. 2018/1198)
Antalya Tenant Lawyer – Antalya Rental Law Lawyer
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